Stephen Schultze and Shubham Mukherjee – Selling the Law: The Business of Public Access to Court Records

As government documents are increasingly digitized and put online, two orthogonal approaches to distributing these documents have developed. Under one approach, the documents are made easily and freely accessible. In others, the government retains or introduces barriers to access that are inspired by traditional physical access. When these barriers are fee-based, the government can inadvertently create downstream monopolies or architectures of control over public information. This problem is especially severe in the case of federal district court documents, which are available only via an outdated, fee-based, court-run system or from expensive aggregators like Lexis or Westlaw. Indeed, evidence indicates that the courts are using public access fees to subsidize other activities. If we are to be a nation of laws, citizens must have access to the law. The upfront cost of making court documents freely available is far outweighed by the long-term benefits to society. Widespread digitization combined with Internet connectivity has placed these benefits within reach. The courts must now address the task of revamping outmoded policies and funding structures in order to align their practice with this reality.

Bios:

Stephen Schultze is a fellow at the Berkman Center for Internet & Society at Harvard University. He studies open government, media policy, and telecommunications law. He blogs at managingmiracles.blogspot.com

Shubham Mukherjee is in his third year at Harvard Law School and a clinical member of the Berkman Center for Internet & Society. His research interests include intellectual property, Internet law, and government transparency.